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Real Property - Conveyancing and Law of Property Act (CLPA). Margaritis v.Milne
In Margaritis v.Milne (Div Court, 2023) the Divisional Court considered a s.37 Conveyancing and Law of Property Act (CLPA) ['Lien on lands for improvements under mistake of title'] application to address 'improvements' accidentally performed on a neighbour's land, here a title transfer and compensation back to the original owner.
This law may have application to facts similar to adverse possession scenarios (regardless of whether they are under the Registry Act and the Land Titles Act):[3] On February 2, 2023, Dineen J. heard these applications. In careful and thorough reasons for decision, Dineen J. concluded that Mr. Milne had made lasting improvements to the strip of land in the belief that it belonged to him. [1] Justice Dineen exercised his discretion and granted title to the wedge of land to Mr. Milne pursuant to s. 37 of the Conveyancing and Law of Property Act.[2] As contemplated by s. 37 of the Act, Justice Dineen ordered that Mr. Milne compensate Mr. Margaritis for the value of the land to be retained by Mr. Milne.
[4] Mr. Margaritis appeals the order of Justice Dineen to this court as of right.[CLPA s.37(2)] At their core, his submissions invite the court to reweigh all of the evidence before the application judge and to make different findings of fact.
[5] In my view, Justice Dineen correctly interpreted s. 37 of the Act. Justice Dineen’s findings of fact, including that Mr. Milne had an honest and bona fide belief that the land was his, and that Mr. Milne made lasting improvements on the land, were reasonably open to him based on the record before him. I see no palpable and overriding error. Justice Dineen also properly exercised his discretion when considering what relief would be most just in the circumstances. Finally, I see no reason to interfere with Justice Dineen’s discretionary decision to have each party bear their own costs of the applications. I would dismiss the appeal.
Subsection 37 of the Act
[6] The relevant portions of subsection 37(1) of the Act read as follows:37 (1) Where a person makes lasting improvements on land under the belief that it is the person’s own, the person…[is] entitled or may be required to retain the land if the Superior Court of Justice is of opinion or requires that this should be done, according as may under all circumstances of the case be most just, making compensation for the land, if retained, as the court directs. [7] Before exercising the discretion to allow a person to retain land owned by another, the court must be satisfied that:a. the party must have genuinely believed that he or she owned the land;
b. the improvements must be of a lasting nature; and
c. the court must weigh the equities between the owner and the person making the improvements to determine whether it is appropriate to transfer the land to the person making the improvements.[4] [8] Justice Dineen correctly interpreted s. 37. He cited the leading cases and considered each of these three elements.
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[16] A lasting improvement is an addition to a property amounting to more than mere repair or replacement of waste. A “lasting” improvement is one that has permanence, in the sense of not being easily removable, as is the case with some fixtures.[7]
[17] Justice Dineen concluded that Mr. Milne had made lasting improvements by constructing a retaining wall, fencing, a c-channel; pouring concrete; and filling in the land by raising it four-feet to construct a parking pad. Each of these findings of fact was available to Dineen J. based on the evidentiary record before him. There is no basis upon which this court can interfere with those findings.
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